The plaintiff, John H. Faust, commenced employment as an electrician maintenance specialist with the Keystone Job Corps Center (Center) on July 27, 1970. Defendant's Answer to Amended Complaint, Document 17 of the Record, para. 6. The Center is operated by a division of RCA. In furtherance of his duties, the plaintiff was required to operate a vehicle owned by the federal government.
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On May 22, 1984 the plaintiff was discharged from his employment for a violation of the Center's Rules of Conduct. The text of this rule states in relevant part:

It is mandatory that employees comply with these Rules of Conduct (and with others that may be established in the future). Since breaking any of these Rules of Conduct could result in serious loss to the Company, the Government, independent contractors, and other employees, the Company reserves the right to discipline, up to and including termination of, employees who do not abide by them.

Involvement in any of the following types of activity is considered a violation of Company Rules of Conduct;

. . . .

Reporting to work while under the influence of intoxicants, or the possession or use of intoxicants while on Company premises.

Rules of Conduct marked as Exhibit A-1 of Appendix to Defendant's Motion to Dismiss the Complaint or, in the Alternative, to Grant Summary Judgment, Document 7 of the Record. (emphasis supplied).

The circumstances leading to the plaintiff's termination began approximately ten days prior to the actual discharge. Mr. Edward Chonskie, Center Support, Logistics Coordinator, was working in the vicinity of the maintenance garage and needed a gasoline siphon. A maintenance employee suggested that Mr. Chonskie search in the plaintiff's truck which was parked in the garage. While Mr. Chonskie was looking in the truck for the gasoline siphon he noticed two empty beer cans. Chonskie immediately reported this finding to Steve Hollock, Administrator of Fire Safety and Security. See Affidavit of Edward Chonskie, Document 29 of the Record, Exhibit II.

Pursuant to the agreement, the Union and Mr. Faust appealed the decision and the grievance was scheduled for a third meeting. This meeting was held on May 29, 1984. The plaintiff was represented by Chief Steward Joseph Pollakusky and Joseph O'Hara, President and Business Agent of the Union. The Center was represented by Petchel, Knox and Joseph. Affidavit of Joseph O'Hara, Document 29 of the Record -- Exhibit II, para. 5 [O'Hara Affidavit].

The following notation was added to the grievance report which Faust originally filed on May 23, 1984: "Union agrees to withdraw this grievance without prejudice." The report is then signed by the involved parties including the plaintiff and dated May 29, 1984. See Document 7 of the Record, Exhibit A-3.

The plaintiff does not dispute the fact that he possessed alcoholic beverages on Center property during his regular work hours. Faust Deposition at 54. Faust also was aware that possession of alcohol on Center property was prohibited but did not believe that mere possession would result in termination. Faust Deposition at 36.

In Clayton v. International Union, Automobile Aerospace & Agricultural Implement Workers of America, 451 U.S. 679, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981), the Supreme Court held that only under limited circumstances would exhaustion of internal union procedures be excused. The Court ruled that "where an internal union appeals procedure cannot result in reactivation of the employee's grievance or an award of the complete relief sought in his § 301 suit, exhaustion will not be required with respect to either the suit against the employer or the suit against the union." Id. at 685.

The affidavit submitted by Union President Joseph O'Hara establishes that Local 406 provides an internal appeal procedure for union members who disagree with the manner in which their grievances are handled. The procedure requires the aggrieved member to first seek relief from the Executive Board of Local 406 and then from the membership assembled at a regular meeting. Both of these bodies have the authority to reinstate any grievance which O'Hara considers to be lacking in merit. O'Hara Affidavit, para. 11.
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Consequently, plaintiff is required to exhaust the internal remedies before this court can exercise jurisdiction over this matter. "We find, therefore, that Csandi's failure to exhaust his internal union remedies or, in the alternative, his failure to present an adequate reason to avoid the exhaustion requirement, deprives this Court of jurisdiction to hear his complaint of unfair representation. . . ." Csanadi v. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 773, 463 F. Supp. 276, 282 (E.D. Pa. 1978).

It is undisputed that Faust never invoked the internal appeal process. Plaintiff's Statement, Document 33 of the Record at para. 12. In opposition to the exhaustion requirement, the plaintiff asserts that "the law does not require the exhaustion of internal union remedies where same would be a nullity." Plaintiff's Brief in Opposition to the Motion for Summary Judgment, Document 34 of the Record at 2. Plaintiff's affidavit and brief fail to state any facts whatsoever in support of this conclusion.

An examination of the record discloses that the following would apparently be plaintiff's harshest criticism of the treatment afforded his grievance by Local 406. As stated above, Faust alleges that: "Mr. O'Hara tried very hard to convince me that I could not go any further with my grievance and that I would have no rights." Faust Affidavit, para. 2. At his deposition the plaintiff testified that during the May 29, 1984 meeting, O'Hara told him that if the grievance continued to arbitration, the matter would be decided against Faust. While Faust stated that O'Hara told him he would not support taking the matter to arbitration, this statement is undermined by Faust quoting O'Hara's "exact words" as saying that they could go to arbitration but would lose. At deposition the following colloquy occurred between plaintiff and his attorney:

Q: Did Mr. O'Hara ever tell you that the Union would help you get your job back?

A: No.

Q: Did they make any offer to help you?

A: They said they could take it to arbitration but they would lose, that's his [O'Hara] exact words.

Faust Deposition at 90.

Even assuming that the above amounts to a refusal on the Union's part to continue the appeal process, the plaintiff's claim is, nevertheless, barred because he failed to exhaust his internal remedies. Clayton v. International Union, Automobile Aerospace & Agricultural Implement Workers of America, supra.

Applying the Clayton exceptions to the instant factual situation, the record is devoid of any inference that an exception might exist. There is no evidence that an appeal to the Executive Board of Local 406, or to the membership at a regular meeting, would be futile. Plaintiff merely alleges that an appeal would be a "nullity" but does not support this conclusion with any citation to the record. It is clear that the Executive Board and the general membership had the power, even assuming O'Hara's opposition, to reactivate the grievance. Finally, there is no allegation that exhaustion would have unreasonably delayed plaintiff's opportunity to obtain a judicial hearing and fair representation.

The plaintiff contends that "the Union did not meet its duty of fair representation." Plaintiff's Brief in Opposition to Motion for Summary Judgment, Document 34 of the Record at 6. The plaintiff fails to support this argument with any citation to the record. Indeed, a review of the record reveals that there is not a scintilla of evidence to support such an allegation.

It is clear that O'Hara regarded plaintiff's grievance as meritless and advised Faust that he was confident the matter ultimately would be decided against him. Faust Deposition at 62; O'Hara Affidavit para. 9. Assuming, arguendo, that O'Hara's advice was tantamount to a refusal to prosecute the grievance any further, the court holds that such a refusal was justified under the circumstances and was not a violation of the union's duty of fair representation.

At the time the grievance was withdrawn, the union had twice conferred with Center representatives in an effort to resolve the matter. During the third meeting, O'Hara asked what position the Center would take with respect to job references and unemployment compensation. Knox stated that the Center would follow its standard procedure. Although this would not assure plaintiff of receiving unemployment compensation benefits, it did guarantee that the reason for discharge would not be communicated to a prospective employer. After receiving this concession, the union and Faust withdrew the grievance. Faust Deposition at 61; O'Hara Affidavit, paras. 8-9; Knox Deposition at 63-4.

As plaintiff never disputed the fact that he possessed alcohol while on Center property, O'Hara was justified in evaluating plaintiff's grievance as frivolous. The union did not breach the duty of fair representation by withdrawing the grievance after receiving the above described concession from the defendant.

WRONGFUL DISCHARGE CLAIM

The court also finds against the plaintiff on the merits of his claim against his employer. To recover against defendant, it must be established that plaintiff "did not receive fair representation from the union as well as proving his claim against the employer." Findley v. Jones Motor Freight, supra at 957 (3d Cir. 1981) (citing Vaca v. Sipes, supra); Aiello v. Apex Marine Corporation, 610 F. Supp. 1255 (E.D. Pa. 1985). "The suit against the employer rests on § 301, since the employee is alleging a breach of the collective bargaining agreement." DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). "The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both." Id. at 165.

Faust was discharged from employment on May 22, 1984 for violating a work rule which prohibits possession of intoxicants on Center property. The Center had mailed a copy of the Rules of Conduct to all employees in 1983 and 1984. Knox Deposition at 64, 65. Plaintiff was cognizant of the fact that possession of alcohol on Center premises was prohibited. Faust Deposition at 36. Plaintiff does not dispute the fact that he had taken alcohol onto Center property. Faust Deposition at 54.

Plaintiff's brief does not explain how defendant breached the agreement reached by the Union and defendant. It is patently clear that the Rules of Conduct authorize defendant to dismiss an employee who is in possession of alcohol. It is uncontradicted that the decision to terminate Faust was reached only after Knox, Petchel and Joseph considered the following factors: First, Faust was a "long term" employee; second, Faust was regarded as a competent electrician; and third, the seriousness of the violation considering that Faust was required to drive a vehicle and work in a potentially dangerous electrical environment. Knox Deposition at 55, 56; Petchel Deposition at 11.

Without explanation plaintiff's brief states "the employer defendant breached the collective bargaining agreement by the summary termination in violation of the just cause requirement for termination. . . ." Plaintiff's Brief in Opposition to the Motion for Summary Judgment, Document 34 of the Record at 6. A review of the deposition testimony of Mr. Petchel and Mrs. Knox indicate that the plaintiff was apparently attempting to establish that defendant had not terminated other employees who violated the rule pertaining to alcohol. These depositions, however, establish that all employees who violated this rule were terminated. Petchel gave the following testimony in his deposition:

Q: What was the basis of his [Faust] termination?

A: It was the possession of an alcoholic beverage during the work hours.

Q: Was it the policy of this center to terminate immediately anyone that was found in possession of an alcoholic beverage?

A: In this situation, yes.

. . . .

Q: Okay. Now please answer the first question, was it the general policy to terminate.

A: Since I had been the center director, yes.

Q: And what were the circumstances in this situation?

A: The circumstances that I had to evaluate, number one, the alcoholic beverage being on the work place, transferred from a personal vehicle to a Government vehicle. A situation that we have 700 students on the center. We have an employee who has an alcoholic beverage in his possession, who works with some very sensitive and dangerous type of items. We're not only talking about the electrical part of it, but we're also talking about the operation of a motor vehicle; and again, not only 700 students being on the site at the time, but also other staff.

Petchel Deposition at 10-11.

Mary Ann Victor Knox testified at deposition that she could recall only two other incidents where an employee violated the Rules of Conduct relating to alcohol. Knox testified that both of these people were terminated. Knox Deposition at 56.

A review of the depositions reveal that the Center has periodically authorized social events where alcohol was allowed to be served. Knox Deposition at 68. Allowing the service of alcohol at a Center social event cannot be equated with possession of alcohol while on duty during working hours contrary to an established written policy. The situations are simply not comparable and involve different circumstances. Accommodating such gatherings does not impair, or eliminate, the determination that plaintiff violated a company rule of which he was aware.

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